United States v. Cohen

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 05-4565
STEVEN IRA COHEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Malcolm J. Howard, District Judge.
(CR-03-77-H; CR-04-28-H)
Argued: May 26, 2006
Decided: August 17, 2006
Before NIEMEYER and TRAXLER, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Dismissed by published opinion. Judge Traxler wrote the opinion, in
which Judge Niemeyer and Judge Goodwin joined.
COUNSEL
ARGUED: Larry Constantine Economos, MILLS & ECONOMOS,
L.L.P., Greenville, North Carolina, for Appellant. Anne Margaret
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: Frank D. Whitney, United States Attorney, Christine Wit-
2 UNITED STATES v. COHEN
cover Dean, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appel-
lee.
OPINION
TRAXLER, Circuit Judge:
Pursuant to a written plea agreement, Steven Ira Cohen pled guilty
to two counts of mail fraud, see 18 U.S.C.A. § 1341 (West Supp.
2006), and one count of conspiracy to commit health care fraud, see
18 U.S.C.A. § 1347 (West 2000). The district court sentenced Cohen
to a term of 28 months imprisonment, followed by a three-year term
of supervised release, and ordered Cohen to pay $371,901 in restitu-
tion, pursuant to the Mandatory Victims Restitution Act ("MVRA"),
see 18 U.S.C.A. § 3663A (West 2000 & Supp. 2006).
Cohen now seeks to appeal, arguing that the district court erred in
determining the amount of loss for sentencing purposes and in calcu-
lating the amount of restitution owed to his victims. The United States
moved to dismiss the appeal based on an appeal waiver contained in
Cohen’s plea agreement. Because the appeal waiver is valid and the
issues Cohen seeks to raise fall within its scope, we grant the govern-
ment’s motion and dismiss the appeal.
I.
Defendant Cohen is a chiropractor licensed to practice in the State
of North Carolina, who has owned, operated, and practiced at several
chiropractic clinics in the state since the early 1980s. In January 2004,
Cohen was indicted on 21 counts of mail fraud and 16 counts of
health care fraud (the "First Indictment"). The First Indictment
charged that, from July 6, 1998 through October 22, 1998, Cohen
devised a scheme to defraud Blue Cross/Blue Shield ("BCBS") and
the United States Department of Labor’s Office of Worker’s Compen-
sation Programs ("OWCP") by submitting claims for medical services
that had never been provided and by submitting claims that misrepre-
sented the nature and extent of patient treatments. According to the
UNITED STATES v. COHEN 3
First Indictment, Cohen’s fraudulent claims caused BCBS and OWCP
to send checks by U.S. Mail in payment for the services purportedly
rendered at Cohen’s clinics.
Approximately three months later, Cohen was charged in a separate
indictment with one count of conspiracy to commit health care fraud,
511 counts of health care fraud, one count of conspiring to launder
money, in violation of 18 U.S.C.A. § 1956 (West 2000 & Supp.
2006), and two counts of attempting to influence a witness, in viola-
tion of 18 U.S.C.A. § 1512(b)(1) (West 2000) (the "Second Indict-
ment"). The Second Indictment charged a much broader scheme,
alleging that from June 1999 through April 2004, Cohen set up sev-
eral different clinics and conspired with others, including other medi-
cal providers, to submit false and fraudulent health care claims to
BCBS and several additional insurance companies. According to the
Second Indictment, Cohen and other members of the conspiracy sub-
mitted claims with fictitious addresses, multiple claims for the same
treatment, claims for services that were never rendered, and claims
that misrepresented the nature of the treatment provided. Each of the
511 separate counts of health care fraud represents a separate fraudu-
lent billing that incorporates by reference the factual basis of the con-
spiracy.
On July 7, 2004, the district court ordered the two indictments con-
solidated for trial. The parties engaged in plea negotiations and, on
July 23, 2004, reached a plea agreement that was memorialized in
writing. In paragraphs 2.a. and 2.b. of the plea agreement, respec-
tively, Cohen agreed, without qualification, "[t]o plead guilty to
counts sixteen and seventeen of the [First Indictment], filed January
14, 2004; and count one of the [Second] Indictment filed April 15,
2004," and "[t]o make restitution to any victim in whatever amount
the Court may order, pursuant to 18 U.S.C. §§ 3663 and 3663A [of
the MVRA]." J.A. 65. Counts sixteen and seventeen of the First
Indictment charged Cohen with receiving payment from BCBS for
two fraudulent health care claims. Count One of the Second Indict-
ment charged Cohen with the June 1999 through April 2004 conspir-
acy to defraud the insurance companies.
Paragraph 2.c. of the agreement memorialized an appeal waiver,
under which Cohen agreed:
4 UNITED STATES v. COHEN
To waive knowingly and expressly all rights, conferred by
18 U.S.C. § 3742, to appeal whatever sentence is imposed,
including any issues that relate to the establishment of the
[applicable and advisory] Guideline range, reserving only
the right to appeal from an upward departure from the
Guideline range that is established at sentencing, and further
to waive all rights to contest the conviction or sentence in
any post-conviction proceeding, including one pursuant to
28 U.S.C. § 2255, excepting an appeal or motion based upon
grounds of ineffective assistance of counsel or prosecutorial
misconduct not known to the Defendant at the time of the
Defendant’s guilty plea. The foregoing appeal waiver does
not constitute or trigger a waiver by the Government of any
of its rights to appeal provided by law.
J.A. 66. In paragraph 4 of the agreement, Cohen represented that he
understood the maximum terms of imprisonment for his crimes, as
well as the applicable penalty of "[r]estitution pursuant to 18 U.S.C.
§§ 3663 and 3663A [of the MVRA], and as agreed to in paragraph
2(b) [of the agreement]." J.A. 71, 72.
Following a guilty plea proceeding pursuant to Rule 11(b) of the
Federal Rules of Criminal Procedure, the district court accepted
Cohen’s plea. At the subsequent sentencing hearing, the district court
heard arguments and evidence as to the amount of loss for purposes
of calculating the advisory guideline sentence, as well as to the
amount of restitution due under the MVRA. At the conclusion of the
hearing, the district court calculated the amount of loss from the
fraudulent schemes, for purposes of determining Cohen’s advisory
guideline range, at $377,095. Cohen was sentenced to 28 months in
prison, followed by a three-year term of supervised release. In addi-
tion, the district court calculated Cohen’s restitution obligations to his
victims to be $371,901.1
1
The $377,095 loss calculation was based upon loss allocated to four
insurance carriers (Allstate Insurance ($17,150), Nationwide Insurance
($20,135), State Farm Insurance ($49,440), and Blue Cross Blue Shield
($290,370)). The restitution amounts for each company were identical,
with the exception of Allstate Insurance Company, which had a loss
amount of $17,150, but a restitution amount of only $11,976.
UNITED STATES v. COHEN 5
II.
Despite the appeal waiver, Cohen thereafter filed this appeal seek-
ing to challenge the district court’s calculation of the $377,095 guide-
line loss as clearly erroneous, and the restitution amount of $371,901
as an abuse of discretion. He argues that the appeal waiver provision
contained in the plea agreement is invalid and unenforceable. Even if
enforceable, Cohen argues that he may nevertheless appeal the restitu-
tion portion of the order because restitution falls outside the scope of
the appeal waiver.
The government moved to dismiss the appeal based upon the
appeal waiver. Thus, "[t]he threshold issue we must consider is
whether the appeal waiver in [Cohen’s] plea agreement precludes him
from presenting these issues on appeal." United States v. Blick, 408
F.3d 162, 167 (4th Cir. 2005). Generally speaking, we will uphold a
defendant’s waiver of appellate rights if the waiver is valid and the
issue sought to be appealed falls within the scope of the waiver. See
United States v. Attar, 38 F.3d 727, 731-33 (4th Cir. 1994); see also
Blick, 408 F.3d at 168 (We "adhere[ ] to the principle that sentencing
appeal waivers generally are enforceable, and we have enforced such
waivers in a number of cases."). To determine whether an appeal
waiver is valid, we look to "whether the defendant knowingly and
intelligently agreed to waive the right to appeal," an inquiry "ulti-
mately . . . evaluated by reference to the totality of the circum-
stances." Id. at 169 (internal quotation marks omitted). We review the
validity of an appeal waiver de novo. See id. at 168.
A.
On appeal, Cohen argues that we should find his appeal waiver to
be invalid and unenforceable because: his ability to knowingly and
intelligently waive his right to appeal was compromised by his Atten-
tion Deficit Hyperactivity Disorder ("ADHD") and accompanying
reading and writing disability; the government drafted the plea agree-
ment and he was in an unequal bargaining position given the severity
of the charges leveled against him; the appeal waiver was not recipro-
cal; and the government induced him to sign the plea agreement by
promising not to argue a guideline loss in excess of $76,211.61 at sen-
tencing.
6 UNITED STATES v. COHEN
Cohen’s argument that the agreement was not knowingly and intel-
ligently entered into because he suffered from ADHD during its nego-
tiation and execution is simply not supported by the record. The
record reflects that the district court undertook a careful inquiry to
determine that Cohen was competent and understood what he was
doing by entering into the plea agreement and pleading guilty. The
district court asked specific questions about Cohen’s ADHD condi-
tion, and explained to Cohen that the court had to be "clear and cer-
tain that the record is correct and that you had the requisite
understanding of what’s going on in order to enter a plea" because "at
some point in time, there may be a reason that you or some other indi-
vidual would challenge your capacity to enter a plea today." S.J.A.
858. Cohen was also represented by counsel during the proceedings,
who assured the district court that the various doctors who evaluated
Cohen all found him competent to understand the nature of the court
proceedings. Cohen’s attorney further stated that he had no difficulty
communicating with Cohen and had no reason to doubt Cohen’s com-
petency. Cohen likewise represented to the district court that he had
read his plea agreement, discussed it with his attorney, and under-
stood "the terms, the language, the sentences, even legal phrases" in
the agreement after discussing it with his attorney. S.J.A. 864-65.
In sum, the record evidence concerning Cohen’s mental impair-
ments shows that he had the ability, after adequate consultation with
his lawyer, to enter into a knowing, intelligent and voluntary waiver
of his right to appeal, and does not call into question his sworn repre-
sentations to the district court. See Blackledge v. Allison, 431 U.S. 63,
74 (1977) ("Solemn declarations in open court carry a strong pre-
sumption of verity. The subsequent presentation of conclusory allega-
tions unsupported by specifics is subject to summary dismissal, as are
contentions that in the face of the record are wholly incredible.");
United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992) (en
banc) ("Statements of fact by a defendant in Rule 11 proceedings may
not ordinarily be repudiated, and, similarly, findings by a sentencing
court in accepting a plea constitute a formidable barrier to attacking
the plea.") (internal quotation marks omitted).
We likewise reject Cohen’s argument that his appeal waiver is
unenforceable because he was induced to plead guilty based on his
"understanding" that the government would not argue at sentencing
UNITED STATES v. COHEN 7
that his actions resulted in a loss of more than $76,211.61. In essence,
Cohen argues that this "understanding" formed a part of his plea
agreement, which the government breached by advocating that he was
responsible for far higher losses. Although we will not enforce an oth-
erwise valid appeal waiver against a defendant if the government
breached the plea agreement containing that waiver, see Blick, 408
F.3d at 168, the record in this case does not support Cohen’s claim
that this "understanding" was part of his plea agreement. Cohen
admitted to the district court that the "understanding" was "not com-
mitted to writing [in] the plea agreement." J.A. 359. At the plea collo-
quy, he further represented that the plea agreement contained all
agreements he had with the government and that no one had made any
other offer to induce him to plead guilty other than what was con-
tained in the plea agreement. We will not invalidate Cohen’s appeal
waiver based on allegations of an "understanding" that is undocu-
mented and unsupported.
Cohen’s claim that we should find the waiver unenforceable based
upon his "unequal bargaining position" given the severity of the
charges leveled against him is equally unavailing. Cohen was repre-
sented by counsel during these proceedings, there is no indication that
he was subjected to any unconscionable conduct during the negotia-
tion process, and Cohen affirmatively represented to the district court
that no one had threatened him or tried to force him to plead guilty.
S.J.A. 865.2 Thus, on our review of the record, we conclude that
Cohen knowingly and voluntarily entered into the appeal waiver con-
tained in his plea agreement and that it is valid and enforceable.
2
As noted above, the appeal waiver provision of the plea agreement
explicitly allowed the government to retain its right to appeal. But even
if we were to conclude that appeal waivers in plea agreements must
always be reciprocal, regardless of the parties’ desire to negotiate them
otherwise, the remedy would not be to invalidate the defendant’s waiver,
but to deem the government as having waived its right to appeal as well.
Cf. United States v. Guevara, 941 F.2d 1299, 1299-1300 (4th Cir. 1991).
Accordingly, to the extent Cohen argues that the omission of a reciprocal
waiver invalidates his waiver, the claim is without merit.
8 UNITED STATES v. COHEN
B.
Having concluded that Cohen is bound by the terms of his appeal
waiver, we turn to the question of whether the issues Cohen seeks to
raise on appeal "fall within the scope of the appeal waiver." See Blick,
408 F.3d at 169. We conclude that they do.
The first issue Cohen seeks to raise on appeal — that the district
court erred in fixing the monetary loss for purposes of calculating his
advisory guideline range — clearly falls within the scope of the
appeal waiver. Cohen specifically agreed "to waive knowingly and
expressly all rights, conferred by 18 U.S.C. § 3742, to appeal what-
ever sentence is imposed, including any issues that relate to the estab-
lishment of the [applicable and advisory] Guideline range." J.A. 66.
Indeed, Cohen agrees that, if this court concludes that his appeal
waiver was knowing and intelligent, then his attack on the district
court’s loss calculation for purposes of determining his advisory sen-
tencing guideline range would fall within the scope of his waiver.
Accordingly, Cohen has waived his right to appeal this issue. See
Blick, 408 F.3d at 170 ("[T]he fact that Blick claims in his net loss
argument that the district court erred in its guideline calculation is of
no moment here. . . . [A]n appeal waiver of the type involved in this
case precludes a claim that the given sentence resulted from a misap-
plication of the Guidelines.") (internal quotation marks omitted).
With regard to the restitution order imposed during his sentencing,
Cohen argues that his challenge falls outside the scope of his appeal
waiver because "restitution" is not part of his "sentence." We dis-
agree.
Although restitution enables victims to recover losses that might be
available in civil litigation, restitution is nonetheless part of the crimi-
nal defendant’s sentence. See United States v. Bruchey, 810 F.2d 456,
461 (4th Cir. 1987) ("Criminal restitution . . . is part of the sentencing
process [and] . . . is fundamentally ‘penal’ in nature."); United States
v. Adams, 363 F.3d 363, 365 (5th Cir. 2004) ("Restitution under the
MVRA is a criminal penalty and a component of the defendant’s sen-
tence.") (internal quotation marks omitted); United States v. Acosta,
303 F.3d 78, 87 (1st Cir. 2002) ("It is undisputed that restitution is
part of a sentence."); United States v. Vandeberg, 201 F.3d 805, 814
UNITED STATES v. COHEN 9
(6th Cir. 2000) ("Restitution is a part of one’s sentence under the stat-
utory scheme, and cannot be imposed without giving the defendant an
opportunity to be heard."); United States v. Ramilo, 986 F.2d 333, 336
(9th Cir. 1993) ("Under the [Victim and Witness Protection Act or
VWPA], restitution is part of the criminal sentence."); United States
v. Satterfield, 743 F.2d 827, 837 (11th Cir. 1984) ("The history [of the
VWPA] is replete with references to restitution as part of the criminal
sentence. . . . There can be little doubt that Congress intended the res-
titution penalties of the VWPA to be incorporated into the traditional
sentencing structure.").3
The language of the statutory restitution provisions also supports
the view that restitution should be considered part of the sentence.
Under § 3553(a) of Title 18, the district court is required to consider
"the need to provide restitution to any victims of the offense," when
"determining the particular sentence to be imposed." 18 U.S.C.A.
§ 3553(a)(7) (West 2000). The MVRA requires a district court, "when
sentencing a defendant convicted of an offense described in subsec-
tion (c)," to order, "in addition to . . . any other penalty authorized by
law, that the defendant make restitution to the victim of the offense."
18 U.S.C.A. § 3663A(a)(1) (emphasis added). And, § 3664 of Title 18
provides that a "sentence that imposes an order of restitution is a final
judgment notwithstanding the fact that . . . such a sentence can subse-
quently be . . . appealed and modified under section 3742 [of Title 18,
United States Code]." 18 U.S.C.A. § 3664(o)(1)(B) (West Supp.
2006) (emphasis added). This view is likewise consistent with our
sentencing guidelines, which instruct courts to enter restitution for the
full amount of an identifiable victim’s loss if authorized under an
appropriate statute. See U.S. Sentencing Guidelines Manual
§ 5E1.1(a) (2004).
3
The Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C.A.
§ 3663A, was enacted in 1996 to amend the Victim and Witness Protec-
tion Act ("VWPA"), 18 U.S.C.A. § 3663, "by requiring district courts to
impose ‘full’ restitution without considering the defendant’s economic
circumstances." United States v. Karam, 201 F.3d 320, 330 (4th Cir.
2000). These amendments, however, do not change the fundamental
premise that restitution is part of a criminal defendant’s sentence under
either the VWPA or the MVRA.
10 UNITED STATES v. COHEN
In sum, we conclude that, as a general rule, a defendant who has
agreed "[t]o waive knowingly and expressly all rights, conferred by
18 U.S.C. § 3742, to appeal whatever sentence is imposed," J.A. 66,
has waived his right to appeal a restitution order. See United States
v. Broughton-Jones, 71 F.3d 1143, 1146-47 (4th Cir. 1995) (implicitly
finding that a defendant who waives the "right to appeal her sentence
on [the] grounds [listed in 18 U.S.C.A. § 3742(a)]" is deemed to have
waived the right to appeal a lawfully imposed restitution order); see
also United States v. Sharp, 442 F.3d 946, 948-52 (6th Cir. 2006)
(dismissing appeal of restitution order where defendant waived the
right "to appeal the conviction or sentence in this case, including the
appeal right conferred by 18 U.S.C. § 3742, and to challenge the con-
viction or sentence collaterally," but reserved the right to appeal a
punishment in excess of the statutory maximum and an upward depar-
ture from the most applicable sentencing guidelines range, because
restitution fell under neither exception); United States v. Behrman,
235 F.3d 1049, 1052 (7th Cir. 2000) (concluding that "[a]n agreement
waiving appeal from ‘any sentence within the maximum provided by
Title 18’ or similar language would foreclose [an appeal from the res-
titution order]"); but see United States v. Phillips, 174 F.3d 1074,
1075-76 (9th Cir. 1999) (finding no waiver of right to appeal restitu-
tion where defendant "knowingly and voluntarily waive[d] [his] right
to appeal any sentence and restitution order imposed by the Court and
the manner in which the Court determine[d] [his] sentence and restitu-
tion order, so long as the sentence is up to a net offense level of 12
following an adjustment for acceptance of responsibility," because the
plea agreement contained no cap on restitution and the plea agreement
was ambiguous as to the amount of damages the defendant might
owe); United States v. Cupit, 169 F.3d 536, 539 (8th Cir. 1999) (per
curiam) (considering challenge to restitution order despite defendant’s
agreement to "waive all rights to appeal whatever sentence is
imposed," expressly declining to "resolve the waiver of restitution
issue in this case"); United States v. Ready, 82 F.3d 551, 559-60 (2d
Cir. 1996) (concluding that defendant did not waive his right to
appeal a restitution order despite his "admittedly broad [ ]waiver of
right to appeal ‘whatever sentence is imposed’" because the terms of
the plea agreement were ambiguous as to whether "sentence" included
"restitution").
UNITED STATES v. COHEN 11
C.
Cohen’s final claim is that the appeal waiver does not preclude his
appeal from the restitution portion of his sentence because the amount
of the restitution obligation exceeded the district court’s authority
under the MVRA.
Although we enforce appeal waivers that are knowing and volun-
tary, "even valid appeal waivers [do] not bar appellate review of
every sentence." Broughton-Jones, 71 F.3d at 1146 (internal quotation
marks omitted). A "defendant who waives his right to appeal does not
subject himself to being sentenced entirely at the whim of the district
court." Id. at 1147. Just as "a defendant could not be said to have
waived his right to appellate review of a sentence imposed in excess
of the maximum penalty provided by statute or based on a constitu-
tionally impermissible factor such as race," a defendant could not be
said to have waived his right to appellate review of a restitution order
"imposed when it is not authorized by the [applicable restitution stat-
ute]." Id. This is because federal courts do not have the inherent
authority to order restitution, but must rely on a statutory source. See
id. at 1149. Because a restitution order that exceeds the authority of
the statutory source "is no less ‘illegal’ than a sentence of imprison-
ment that exceeds the statutory maximum, appeals challenging the
legality of restitution orders are similarly outside the scope of a defen-
dant’s otherwise valid appeal waiver." Id. at 1147.
In this case, the statutory source of the district court’s authority to
impose restitution is the MVRA, which required the district court to
order restitution for (1) those who are "directly and proximately
harmed as a result of the commission of an offense for which restitu-
tion may be ordered" and (2) "in the case of an offense that involves
as an element a scheme, conspiracy, or pattern of criminal activity,
any person directly harmed by the defendant’s criminal conduct in the
course of the scheme, conspiracy, or pattern." 18 U.S.C.A.
§ 3663A(a)(2) (West 2000); cf. United States v. Davenport, 445 F.3d
366, 373 (4th Cir. 2006) (holding that court cannot order restitution
under the MVRA to persons who are not victims of the offenses for
which the defendant was convicted).
Cohen does not dispute that his offenses are ones for which restitu-
tion may be ordered. See 18 U.S.C.A. § 3663A(c)(1) (listing the
12 UNITED STATES v. COHEN
offenses covered by the MVRA as including "an offense against prop-
erty under this title, . . . including any offense committed by fraud or
deceit"). Rather, he argues that the district court exceeded its author-
ity under the MVRA by ordering him to pay restitution to all victims
of the conduct falling within the scope of the conspiracy count as it
is defined in the Second Indictment. According to Cohen, although he
pled guilty to the conspiracy count in the Second Indictment, he effec-
tively limited his role in the conspiracy (and, thereby, the amounts he
owed in restitution) in the plea agreement.
We are unpersuaded. Under the express terms of the plea agree-
ment, as confirmed by the colloquy at the plea hearing, Cohen uncon-
ditionally pled guilty "to . . . count one of the [Second] Indictment
filed April 15, 2004," J.A. 65, which charged Cohen and others with
a conspiracy to defraud health care providers during the time frame
from June 1999 through April 2004. Cohen also agreed to "[t]o make
restitution to any victim in whatever amount the Court may order,
pursuant to 18 U.S.C. §§ 3663 and 3663A." J.A. 65. During the guilty
plea hearing, Cohen confirmed to the district court that he was plead-
ing guilty to the conspiracy count as defined in the Second Indict-
ment:
Q. How do you plead to Count One of the April 15, 2004
original indictment [the Second Indictment]?
A. Guilty, Your Honor.
Q. Did you as charged in Count One [of the Second
Indictment] on or about October 22, 1998 involve your-
self in a conspiracy; that is, an agreement with at least
two people involved, to commit healthcare fraud and at
some point during this conspiracy knowingly perform
one of the overt acts charged in the indictment?
A. Yes, Your Honor.
THE COURT: Thank you. You may be seated. Madame
United States Attorney, I’ll hear your proffer of the facts
you believe the United States could prove at trial so I might
UNITED STATES v. COHEN 13
have an independent factual basis for accepting Dr. Cohen’s
plea.
S.J.A. 867. At that point, the court was provided with the requisite
independent factual basis for accepting the plea on the conspiracy
count — the same factual recitation that was set forth as the factual
stipulation in the plea agreement. By way of summary, Cohen admit-
ted having an interest in a number of separate clinics (most of which
listed the same address), practicing within those clinics, and hiring
various medical doctors to also evaluate patients who visited the clin-
ics. In addition, Cohen admitted that "[b]etween 2000 and 2002," he
and at least one of these physicians personally "caused materially
false and fraudulent claims for reimbursement to be submitted . . . to
the insurance companies for needle electromyographies supposedly
administered to patients, knowing that those services had not been
administered." J.A. 76.
Although there is no such expressed intent in the language of the
agreement, Cohen now claims that the intent of the "factual stipula-
tion" was to limit his "offense of conviction" under the Second Indict-
ment for purposes of computing his restitution obligation to false
claims for "needle electromyographies" submitted to insurance com-
panies "[b]etween 2000 and 2002" that amounted to no more than
$7,165.00. J.A. 76. In other words, Cohen argues that the offense of
conviction for purposes of the MVRA was restricted to Cohen’s spe-
cific "admissions of guilt as specifically defined by the factual basis
of his plea" contained in the plea agreement. As a result, Cohen
argues, the district court was authorized to impose a restitution obli-
gation of no more than $7,331.50 ($7,165.00 for the conspiracy count
in the Second Indictment, plus $166.50 for the face amount of the
claims involved in the two counts of mail fraud in the First Indict-
ment).
We are unpersuaded by Cohen’s attempt to use the factual stipula-
tion, without more, to limit his role in the conspiracy to which he pled
guilty. Cohen pled guilty to Count One of the Second Indictment,
which charged an overarching conspiracy encompassing a wide array
of fraudulent conduct that was not limited to false claims to insurance
companies for needle electromyographies between 2000 and 2002.
One of the overt acts charged in the conspiracy count of the Second
14 UNITED STATES v. COHEN
Indictment was that, "[o]n multiple occasions between January 2000
and February 2002, [Cohen] and a co-conspirator caused materially
false claims to be filed with [the] insurance companies falsely claim-
ing that medical doctors had administered electromyography proce-
dures to patients" at two of Cohen’s clinics. J.A. 36. But, there is no
indication that, when Cohen admitted in his plea agreement that he
submitted false claims to insurance companies for "needle electro-
myographies" during the time frame "[b]etween 2000 and 2002," J.A.
76, the intent of the parties was to effectively rewrite Count One of
the Second Indictment and have Cohen plead guilty only to a conspir-
acy so limited in time and scope. Rather, we think the clear import
of the language was to establish Cohen’s admission that he "know-
ingly perform[ed] one of the overt acts charged in the [Second Indict-
ment]," S.J.A. 867, for purposes of providing the requisite factual
basis for acceptance of his plea to Count One of the Second Indict-
ment as written. This is all that is needed to hold him responsible for
the full extent of the conspiracy. See United States v. Burgos, 94 F.3d
849, 858 (4th Cir. 1996) (en banc) (explaining that the Government
does not need to prove that the defendant had "full knowledge of all
of [the conspiracy’s] details," and that a defendant can be convicted
of conspiracy "if he joins the conspiracy with an understanding of the
unlawful nature thereof and willfully joins in the plan on one occa-
sion, . . . even though he had not participated before and even though
he played only a minor part") (internal quotation marks omitted).
In sum, we are satisfied that the district court complied with its
mandatory statutory obligation to order restitution to all "victims" of
the conspiracy to which Cohen pled, even if Cohen did not expressly
admit to each and every overt act alleged to support it, and that the
district court did not exceed its authority in doing so. See 18 U.S.C.A.
§ 3663A(a); United States v. Newsome, 322 F.3d 328, 341 (4th Cir.
2003) (rejecting defendant’s claim that restitution should be limited
to the harm caused by the substantive offense of which he was con-
victed, despite his conviction of a broader conspiracy; "under the
MVRA, each member of a conspiracy that in turn causes property loss
to a victim is responsible for the loss caused by the offense") (empha-
sis in original). The plea agreement contains no provision purporting
to limit Cohen’s restitution obligation and, on the contrary, the agree-
ment clearly documents the parties’ understanding that restitution
would be a component of Cohen’s sentence and that Cohen was
UNITED STATES v. COHEN 15
agreeing "[t]o make restitution to any victim in whatever amount the
Court may order, pursuant to 18 U.S.C.A. §§ 3663 and 3663A." J.A.
65.
Because the district court’s restitution award was within the scope
of its authority under the MVRA, Cohen’s challenge to the amount
of restitution ordered falls within the scope of the appeal waiver con-
tained in the plea agreement.
III.
For the foregoing reasons, we grant the government’s motion to
dismiss Cohen’s appeal in its entirety.
DISMISSED